Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Sole...on Ice
June 05, 2007 3:40 PM
My screenwriter friend Pam Brady once declared that if you can stick “on Ice” in a title, like those brilliant folks at Disney, it immediately transforms it into something bigger, better—an outright can’t-miss Event. I mean, who would rush to see a bunch of Disney characters prancing around the Verizon Center in flat shoes? But you put Snow White in skates and voila! Thousands rush to buy tickets. (Pam was really pushing me to call my book “Supreme Conflict…on Ice,” or something like that, and I have to concede it may have boosted sales.)
Anyway, I’ve warmed up to the mysterious magnifying effect of “on Ice.” It’s a handy way of signaling that a routine thing is, in fact, Something Really Big. So with thanks to Pam, let’s just think of Sole v. Wyner, yesterday’s nude-protest-on-the-beach decision, as “Sole…on Ice.”
What reads like a technical case involving a dispute over attorneys’ fees is, in fact, a Big Deal. It’s a perfect example of what John Roberts is trying to achieve in his efforts to move the Court toward consensus. The case ended up 9-0, but only after some of the Justices put aside their differing views on the law. Some would have been inclined to write more broadly—or offer up a concurrence. But they instead joined together to issue the narrowest of rulings.
Roberts has talked in detail and at length about how he wants the Court to operate with more consensus and unanimity. When I interviewed him last fall, he explained that unanimous—or nearly unanimous—decisions were easier for the lower courts and the litigants to understand. He said they also led to greater stability in the law, because they probably had more staying power than a 5-4 decision, and were better for the Court as an institution.
“The more justices that can agree on a particular decision, the more likely it is to be decided on a narrow basis, and I think that’s a good thing when you’re talking about the development of the law, that you proceed as cautiously as possible,” Roberts said.
There’s been a lot of confusion, though, about what Roberts really means by consensus—especially since we’ve seen the most controversial cases regularly splitting the Court 5-4. Those decisions have prompted some to label Roberts’ efforts an outright failure. (You can almost see these people ruefully shaking their heads at his “naiveté” when they write these stories.) Others have seemed disappointed, as if they expected Roberts to compromise his own conservative views to avoid the dreaded 5-4s.
But that’s getting close to the classic straw-man argument: You misstate someone’s position, then go on to talk about how off base the person was. (It’s something you see a lot of in Washington, believe me.)
Roberts isn’t talking about compromising principles to reach a unanimous decision. He isn’t suggesting justices change their positions solely for the good of the institution—certainly he wouldn’t do that (he thinks his views on the law ARE for the good of the institution). When Roberts goes on about consensus, he’s talking about cases where the justices could put aside whatever bolder views they have on the law to reach a more narrow result—to look first for agreement and common ground.
“It really is a case-by-case consideration,” Roberts explained back in November. “In some areas, I think, again, the more cautious approach, the narrower approach, the approach that can get as many justices as possible to sign on to it is the preferred one.”
It’s just that there may not be a whole lot of page-one cases where that’s possible.
Supreme Court lawyer Roy Englert, a keen observer of the Court, put it this way: “If you take it case by case and ask how you possibly could have written more narrowly, you don’t come up with a lot of places where you could have. Sometimes, when you do your best to figure out if there’s a narrow ground for agreement, you find there isn’t. You have stark disagreement. And that’s the time you just go ahead--everyone adheres to his or her principles, and you release the opinion.”
But there are some cases where the Court—when the justices work at it--can find common ground. And that takes us to Sole v. Wyner. Or as I think we all can now call it, Sole…on Ice.
It's a case where the Court might well have had a bare (no pun intended) majority for a broader rule. But it achieved unanimity by deciding only the case before it, leaving for another day what the outcome might be on similar, but different, facts.
For a dispute over attorneys’ fees, the case had spectacular facts. Florida artist Toni Anne Wyner wanted to organize a crowd into a peace symbol on a public beach. The problem? The crowd was gong to be naked when it formed the peace sign--to symbolize, as Wyner told Tony Mauro in the Legal Times, “the vulnerability of all humans.”
Florida officials didn’t much like the idea, because it didn’t comply with the state’s “Bathing Suit Rule.” So Wyner sued and got an initial victory: a preliminary injunction blocking state officials from interfering with her nude protest, so long as it was behind a screen to shield beachgoers who happened to believe in the “Bathing Suit Rule.”
Wyner also sought a permanent injunction so she could put on another nude production the following year, but to that, the judge said “enough.” There had been a breakdown in “peace” during the protest--some of the nudists stepped outside the screen and went swimming on the public beach. The judge said no more—and no to the permanent injunction.
But the judge awarded Wyner attorneys’ fees to cover her successful preliminary injunction. State officials protested, setting up the Supreme Court showdown. Florida—supported by the Bush Administration—argued that the fees were inappropriate because Wyner wasn’t a “prevailing party” in the case. Sure she’d won an early round, but she lost at the final judgment stage when the judge ruled against the permanent injunction and granted summary judgment to the state.
But Florida and the Bush administration wanted to go further than the narrow facts of Wyner's case. They pushed for a broad rule that would deny fees in any case where the party didn't get a final judgment—even in cases that were resolved at the preliminary stage and never played themselves out to the end.
That prompted an outcry from a number of public interest groups, which filed court papers on Wyner’s side. They said a broad rule denying fees would discourage them from pursuing cases to vindicate key constitutional rights (such as lawsuits to put on marches or those challenging elections procedures, religious displays or prayers at graduation—sometimes those cases are quickly resolved by a preliminary injunction, and that ends the dispute). Since many of those cases never reach a final judgment, under a broader rule, the lawyers wouldn’t be able to recover their fees.
Some of the conservative justices would have embraced that view. But at argument, Roberts was clearly looking for the middle ground (a place Kennedy also seemed to appreciate), asking administration lawyer Patricia Millet at one point: “Are you on the all or nothing team this morning?”
He assigned Justice Ginsburg the decision, and she produced a narrow, careful opinion. She wrote that the Court specifically was not reaching the broader question.
“We express no view on whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees,” Ginsburg wrote for the unanimous court. “We decide only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees (under the law) if the merits of the case are ultimately decided against her.”
It was 9-0. No one wrote separate concurring opinions, advocating the broader rule. The Court saved the bigger question for the next case, one that squarely presents the facts, and it issued a clear rule to govern cases like Wyner’s.
Strike one up for consensus, narrowness and incremental decision-making. Sole…on Ice.
June 5, 2007 | Permalink | User Comments (10)
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I just read at "Abovethelaw.com" these comments you made at an event last week:
"On various possible nominees:
Maureen Mahoney: confirmable, but someone conservatives would be *upset* by.
Janice Rogers Brown: could be tougher to confirm (despite "getting high marks from her colleagues" on the D.C. Circuit).
Some conservatives might say that Supreme Court nominations are "the only thing that Bush has gotten right," and essentially "dare the Democrats to vote down Janice Rogers Brown."
Priscilla Owen: "getting high marks on the Fifth Circuit.""
I agree with all of that and am glad to hear it so clearly stated at a public event. But I want to make one comment on it for emphasis. It's an understatement to say Mahoney is "someone conservatives would be *upset* by". Upset is not strong enough, just as it isn't strong enough to say conservatives are *upset* by the immigration bill. Conservatives would react to a Mahoney nomination in a similar way as they're reacting to the immigration bill -- they would be loud, angry and rebellous. The problem is not just Mahoney's position on affirmative action. More than just that, the problem is a person having a liberal position like hers on affirmative action almost always means the person also has liberal positions on Roe and the other social issues (ie the fear of "another O'Connor). That's the problem with her for conservatives -- her expected liberal position on Roe and all the other social issues.
I have noticed that some socially liberal Republicans have been slamming Brown and Owen since they appeared on your latest short list, saying they have no chance at all of being confirmed. These are representative of the socially liberal Republicans who want Mahoney to be nominated (so they slam Brown and Owen to build up Mahoney). And I expect if Giuliani is elected, these socially liberal Republicans will get their wish of having Mahoney on the Supreme Court.
Social conservatives want to make sure Mahoney (and Giuliani) stay *solely. . . on Ice*.
Posted by: Joe | Jun 7, 2007 12:00:29 AM
Jan,
As usual, really interesting observations. You continue to provide, more so than any other reporter, columnist, or pundit, the most insightful SCOTUS commentary around, online or in print.
Posted by: Marshall | Jun 9, 2007 9:37:33 PM
Taps the final 100 days
Peter Macdonald 465 Packersfalls rd Lee NH 03824
John Clayton wrote a wonderful article on “100 days of Taps at the Veterans’ cemetery in Bow NH. The article was great because it talked about honoring Veterans for what they did. We should not just honor the recognized hero, but all Veterans. For every Veteran is a hero. The lucky veteran dies in theater or comes back to live a normal life. The unlucky Veterans are the ones whom return disabled. The Veterans with problems accepting reality because of what she or he saw or did. The Veteran that became homeless not because people don’t care but because people don’t understand this veteran’s reality. Taps is the final bell for these hero’s.
I got more out of John’s article. It made me think, the final bell should be to educate our children why the Veteran give their lives for a piece of paper called the “Constitution”. The final bell should be to educate our children on the responsibility of placing our nation first. Most children have no idea what a veteran has given for them. Some children’s first introduction to what a veteran is, happens the first day that this child becomes a Veteran them selves. John’s article should be printed in every paper.
Our politicians claim to do so much for the Veteran. It is all superficial for political gain. News Media should talk about Veterans every day. A Veterans letter to the editor should never be censored or edited. A disabled Veterans Medical care for serviced connected injuries should never be used as a political weapon to stop free speech. The Manchester NH Veterans Hospital stopped a 100% disabled veterans medical care for this very reason last week. The Director Dr. Levenson ordered medical care for a veteran whom received two of his three injuries in combat support missions stopped. The News Media refuses to print the facts. Disabled Veterans have problems receiving medical care every day. There should be the best medical care for every veteran at all times. Our politicians use veterans medical care as a political tool. Two U.S. Senators from NH refuse to help some disabled veterans because it is not to their political advantage. Some U.S. Rep. from Congress use a disabled Veterans medical care to silence this veterans free speech. John wrote a wonderful article but I wonder if John or others will realize a veteran does not want anything from you (the People of the United States) accept for you to realize what we gave our lives for. When you hear taps played remember all veterans gave their lives to protect and defend our Constitution. Learn what our Constitution is about and do not let the politicians diminish it. Let Taps be the final salute to all veterans as a way to assure them their sacrifice was not in vain.
Peter Macdonald Sgt USMC Semper Fi
Posted by: Sgt Peter Macdonald | Jun 10, 2007 11:27:59 AM
Well, the drive for consensus held up in the five unanimous opinions yesterday, but those weren't contentious cases, so who knows. It will be interesting to see if the trend holds up Thursday (Scotusblog says the Court is issuing one or more opinions this Thursday and expects a total of five more opinion days this term).
The drum beat building up to the last day of the Court has started. I'm getting intriqued by the possibilities of what could happen at the end.
Obviously, the main intrique is over the possibility of a retirement, but to distract myself from that, I've started wondering about the school segregation cases. I'm now figuring those will come down on the last day and will not be unanimous but will be 5-4 and will be broader than people seem to be expecting. I figure the Court will give clear guidelines on this contentious grey area, and the best way to give those clear guidelines is not to be narrow. Just a guess.
I'm not making a guess on a retirement because if I did make a guess I'd have to guess "no retirement" and what fun would that be (not nearly as much fun as having a good old donnybrook over Janice Rogers Brown's nomination).
Posted by: Joe | Jun 12, 2007 3:43:55 PM
The basic confusion about JGR's project stems from the view that unanimity/consensus is the star orienting all of his navigation.
It has to be conceived of as a 2-step process. Some of this process happens before and some happens after drafting begins, and signals and expecations are important. As JCG and Linda Greenhouse have rightly noted, JGR would never sacrifice the right answer for unanimity. Once the merits are safely in sight though (step 1), step 2 can begin. JGR's project is thus necessarily a contingent, ancillary one.
And of course this manifests itself not only in fewer 5-4 decisions but the absence of a concurrence like Frankfurter's in Cooper v. Aaron, which may, in some cases (not all), subtract from the jurisprudence.
Posted by: Commenter | Jun 17, 2007 8:07:29 PM
Imitation is for the most part so unconscious that its effects are almost unheeded,but its influence is not the less permanent on that account.It is only when an impressive nature is is placed in contract with an impressionable one that the alteration in the character becomes recognizable.Yey even the weakest natures exercise some influence upon those about them. The approximation of feeling ,thought,and the habit is constant,and the action of example unceasing.Who cares about Scotus words as misleading as his acts.. Let me state these words "Remember-resemble-persevere"
Posted by: Roger Waugh | Jun 18, 2007 8:15:49 PM
Hmmm, now starts the final week. Tension slowly builds. Possibly ending in a stunning crescendo?
What about the Bong Case (for which the main attraction seems to be the postmodern absurdity it has about it?) What about Hein v. Freedom of Religion Foundation (about which People For The American Way feels very strongly, so that in itself hikes up the stakes)? What about the race cases?
And, oh yeah, I think there was another little matter a few have wondered about, what was that now . . . ?
Posted by: Joe | Jun 21, 2007 9:23:55 PM
Well, all right, I now see what you mean about Roberts and narrowness -- both in last week's mostly unanimous opinions and in Monday's mostly 5-4 ones. And I also see, in those and others this term, what you were saying a while back about Roberts wanting to get the Supreme Court out of the social issues and put those issues back in the legistatures where they belong. The two themes seem to be moving along together.
So, what will tomorrow bring with the race cases? More narrowness? More of getting the social issues away from the courts and back into the legislatures? With the race cases, I'm still expecting less narrowness and more of a bold clearing up of what is a large, contentious gray area. It's an issue that directly effects the everyday lives of a lot of people, unlike most of the narrow decisions of this term which don't directly effect nearly that many people -- not even when they're all totaled up together.
By the way, any last minute Insider information you want to share with us on a retirement? I'm figuring there's a dark horse chance of one -- and it's not Stevens. I'm thinking autumn in New Hampshire might be appealing to someone who's not real thrilled with suddenly being on the short-end of all those 5-4s.
Posted by: Joe | Jun 27, 2007 6:45:20 PM
Good, for Chief Justice Roberts. He wrote a clear, broad and bold opinion in the race cases . . . and then along came Justice Kennedy and muddied it up and watered it down. Typical.
This current Court isn't as conservative as many writers are saying these days, and, of course, the reason for that is Kennedy. This term Kennedy has made it very clear that as long as he's sitting in his 5th vote seat, most of this much-talked-about movement to the right will only be a few degrees.
Bush, at least so it seems now, won't be nominating any other Justices to the Court, so Kennedy apparently will keep his 5th vote seat for some time. No one should get up their hopes that he will change his muddying-up, watering down ways. What the Court is now is likely the way it stays for some time.
The Presidential race certainly will take note of the current Court make-up and how it's one vote away from a solid conservative majority. That will be a strong lure to get social conservatives to the polls.
If Fred Thompson (the guy who walked Roberts through the confirmation process) gets elected President, he likely will have a HUGE influence on the make-up of the Supreme Court for decades to come, especially if he serves eight years. Should be interesting.
Posted by: Joe | Jun 28, 2007 7:22:48 PM
With the republicans supporting the Mex invasion, Refuses to inforce the law, (Misdemeanor to be in Texas illegally) or the fact that the immigrants use fake social security cards with total legal protection of the government(a felony for Americans) it's time to correct this,
At 18 I was threatened with jail if I did not go to war. I was POISENED by the US MILITARY,USN lied to my unit for 31 YEARS as 66% of my division died from the exposure. I pay school tax to educate illegals after the government sterilized me and still continue TO REFUSE to test me even though the VA Doctors say we know you are sterile and the chemicals you were exposed to, cause sterility... WE WON'T TEST YOU AND YOU CAN'T PROVE IT IN COURT! Tell all in Congress what worthless ###they are and stop voting for president as it was a television show you STUPID ###.
Posted by: Randy Amos | Jul 1, 2007 9:15:28 AM
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